Allowed

M.Balaraju v. The State of Telangana and 9 Others

Telangana HC20 Apr 2023WP/33120/2022

Case brief

AI extract

What is this about?

Telangana HC allowed a writ petition filed by a fisher seeking a direction to stop alleged illegal fishing. The court held that the tank is government-maintained, granting exclusive fishing rights to the registered cooperative society while allowing farmers to cultivate the land once water recedes.

What did the court decide?

Writ petition allowed; direction implied to respondents to stop illegal fishing by Respondents 7 to 10.

M.Balaraju Vs The State of Telangana and 9… — Pension and Retirement Benefits | Telangana HC (2023)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY ,THE TWENTIETH DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

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WRIT PETITION NO: 33120 OF 2022

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Between:

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M.Balaraju, S/o Swamy, Age . 55 years, Occ. Fisherman, Rl/o H.No. 3-72, Peddakorukondi Village Kalluru Mandal, Khammam District-S07 209

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...PETITIONER

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AND

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The State of Telangana, Rep by its Principal Secretary Fisheries Department Secretariat Hyderabad

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f he Assistant Director, of Fisheries/ District Fisheries Officer, Khammam.

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The Fisheries Development Officer, Wyra, Khammam.

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Vennavalli Grama Panchayat, Rep. by its Secretary, Vennavalli Village, Kallur Mandal, Khammam District

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The Station House Officer, Kallur Police Station, Kalluru, Khammam District

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Harijana Fishermen Co-operative Society Ltd, Rep. by persons-incharge Peddakorukondi, Kalluru Mandal, Khammam Districl5OT 209

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Kalyanapu Pulla Rao, S/o Nageswar Rao, aged 58 years Occ Agriculture R/o Sundaraiah Nagar, Flat No G2, Sai Srinivasa Apartment, Madhira Town and Mandal Khammam District

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Kalyanapu Nalini, Wo Ramakrishna, aged about 33 years Occ agriculture Rl/o H No 244 Station Road Madhira Town and Mandal Khammam District

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Samineni Venkata Krishna, S/o Seetha Ramaiah, aged about 33 years Occ agriculture Rl/o H No 244 Station Road Madhira Town and Mandal Khammam District

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l0.Samineni Prameela, Wo Sambasiva Rao Aged about 55 years Occ agriculture Rl/o Khammampadu Village Madhira Mandal Khammam District

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circ.umstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction particularly one in the nature of Writ of Mandamus declaring the impugned action of the Resondents 2 to 6 in not taking action against Respondents 7 to 10 for conducting illegal

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fishing operations in Nallacheruvu situated in Sy.No. 82 and 83 and its bye numbers Vennavalli Gram Panchayat, Kalluru Mandal for which the 6th Respondent society is given fishing rights on payment of upset price fixed by the Gram Panchayat, Kalluru Mandal upto 2021 and by the Fisheries Development Officer from 2022 onwards, depriving the Petitioner and members of the 6th Respondent society of their means of livelihood as illegal, without^{jurisdiction,} violative of Article 14, 19 and 21 of the Cosntitution of lndia and consequently direct the Respondents to take necessary action against the^persons indulging in illegal fishing in in Nallacheruvu situated in Sy.No. 82 and 83 and its bye numbers Vennavalli Gram Panchayat, Kalluru Mandal for which the 6th Respondent society is given fishing rights

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lA NO: 1OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Sth Respondent to take necessary action on the 2hd Respondent letter dt. 29lOOl2O22

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lA NO: 2 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit petitioners/Respondent No.7 to 10 to file additional Counter affidavit along with relevant documents supplied by the various Depa rtme nts

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Counsel for the Petitioner: SRl. S. RAHUL REDDY

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Counsel for the Respondents No.1to3: GP FOR FISHERIES

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Counsel for the Respondents No.4: SRl. KALYANA RAO

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Counsel for the Respondents No.S: GP FOR HOME

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Counsel for the Respondents No.6to10: SRl. M. SRINIVAS RAO

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The Court made the following: ORDER

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THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

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W.P.No. 33120 of 2022

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ORDER:

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This writ petition has been liled by the petitioner seeking a writ of mandamus declaring the action of the respondents No.2 to 6 in not taking action against respondents No.7 to l0 for conducting itlegal fishing operations in Nallacheruvu situated in Sy.Nos.S2 and 83 and its bye numbers in Vennavalli Gram Panchayat, Kailuru Mandal, in spite of fishing rights given to 6h respondent society on payment of upset price fixed by the Gram panchayat, Kalluru Mandal upto the year 2O2l and by the Fisheries Development Oflicer from the year 2022 onwards, depriving the petitioner and members of the 6th respondent society of their means of livelihood as illegal, without jurisdiction and violative of articles 14, 19 and 21 of the Constitution of tndia and consequently to direct the respondenrs to take necessary action against the persons indulging in illegal tishing in Nallacheruvu situated in Sy.Nos.82 and 83 and its bye numbers in Vennavalli Gram Panchayat, Kalluru Mandal for which the 66 respondent society is given iishing rights

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PA'D'J w.P.No. 33r2O of 2022

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Brief facts leading to the filing of the present writ petition are that the petitioner is claiming to be a member of Harijan Fisherman Co-operative Society, Peddakorukondi Village, Kalluru Mandal, Khammam District which conducts f-rshing activity in all the three tanks in the village namely 1.Ooracheruvu, 2.Komatikunta Cheruvu, 3.Nallacheruvu situated in Vennavalli Village and controlled by Vennavalli Gram Panchayat, Kalluru Mandal in Khammam District. The regular upset price is fixed by Divisional Panchayat Officer and on payment of the upset price, the tank shall be handcd over to the fisheries society for conducting hshing activity for the years notified.

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It is submitted that all three tanks existed for more than 6 decades and even as per pahanies of 2016-17, land spread in Sy.Nos.82, 83 and respective bye numbers is covered under Nallacheruvu over an extent of Ac.9.O7 gts., and the same is being maintained and controlled by Irrigation Department.

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It is submitted that the 6th respondent Society, Peddakorikondi, in which petitioner is an active member and former President, has been regularly paying the upset price \ /

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PMD,J W,P.No- 3312o of 2022

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fixed by the Gram Panchayat and has been conducting fishing operations through its members for more than 4 decades as per lease rights granted to them by Gram Panchayat on payment of upset price by putting the seeds and growing fish upto the year 2O2l ar-d. then by Fisheries Development Officer from 202 1 onwards, but the respondents No.7 to 1O have been iliegally conducting hshing operations in Nallacherurru without any fishing rights and taking away society's fishes stating that the tank is situated in their patta land in Sy.Nos.82 and 83.

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It is also submitted that even on the previous occasions, petitioner and other members of the 6th respondent Societ5r have given complaints to Gram Panchayat and Fisheries Department to take necessary action against the illegal lishing. In this regard, the 2nd respondent has also addressed a letter dated 29.06.2022 to the Sth respondent i.e., Station House Ofiice, P.S.Kalluru, Khammam District to take necessaqz action. Aggrieved by the inaction ol respondents No.2 to 6 in taking action against respondents No.7 to 10 for conducting illegal fishing operations in Nallacheruvu of Vennavalli Village of Kalluru Mandal, situated in Sy.Nos.82 and 83, the present writ petition has been filed

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PMD,J w-P.No.33120 oJ 2022

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Rcspondents No.1 to 3 have filed the counter affidavit stating that the fixation of the lease rentals for tanks having less than 1OO Acrs ayacut vested with the Panchayat Raj Department whereas during the year 2O2l after promulgation of G.O.Ms.No.268, PR and Rural Department (GP-FIN) Department, dt.23.O7 .2021 by Telangana Government, the fishing lease rights of all water bodies below 1O0 Acrs ayacut are transferred to Fisheries Department. Accordingly, as per the orders from the DLPO concerned, the hshermen of HFCS Peddakorukondi paid the lease rentals upset price for the two consecutive years i.e., 2Ol9-2O and 2O2O-21 to Gram Panchayat Vennavalli in lumpsum amount. Subsequent to the G.O.Ms.No.268, the Society has paid the lease rentals to the Fisheries Department Officer Wyra, vide Receipt Nos. 113 &, 122, an amount of Rs.27,54O/- during the year 2O2l-22.

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It is submitted that on the representation of the petitioners against illegal exploitation of the fishery wealth by the respondents No.7 to 10, the Fisheries Development Officer has addressed letters to Sub-lnspector of Police, Kalluru and Station House Officer, Kalluru for saleguarding the fishing rights of Harijana Fishermen in Nallacheruvu of Vennavalli \ /

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PMD,J w.P.No, 3312o of 2022

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Village. The learned counsel for the petitioner therefore prayed lor a direction to the respondents No.l to 7 to stop the illegal fishing by the respondents No.7 to 10 from illegal fishing and consequently to allow the petitioner to do fishing.

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The learned counsel further submitted that the Nallacheruvu of Vennavalli Village of Kalluru Mandal is a public tank maintained by lrrigation Department and Government has incurred an amounl of Rs.8,60,009/- under NREGS for restoration of the tank. Therefore, registered Fishermen Cooperative Society shall have the right to exploit fishery wealth (Reiated to Revenue Department).

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Learned counsel for the respondents relied upon the decision o[ this Court in the case of Pattedars Vs. Fisherman Co-operative Society Lachaguedem in W.P.No.3737 of 1997.

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The learned counsel for the respondents No.7 to 10 reiterated the submissions made in the counter affidavit and additional counter affidavit filed by the respondents No.1 to 3, that all tanks and canals are vested with the Government under^. Section 24 of the Telangana Revenue Act, 13i7 Fasili subject to notification and controI taken over by the Irrigation Department, )\l

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PMD,J w.P.No. 33120 of 2022

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*,hich maintains the tank by putting a bund around the tank, by placing locks for outgoing water to the ayakattu lands and by creating internal canals from the tanks. Such notification and the procedure proves the maintenance of the tanks by the Irrigation Department and that there is no such record available regarding the notification or maintenance or the fishing rights being auctioned by the Gram Panchayat or the Irrigation Department or by the Fisheries Department.

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I 1. The learned counsel submitted that there is no trace of hshing rights being auctioned either by the Gram Panchayat or by Irrigation Department or by Fisheries l)epartment and that the "Nallacheruvu tank" calimed by the Government is in fact an agricultural land belonging to the respondents No.7 to 10 and that out ofa total extent of Ac.21-00 patta lands, one or two acres of the agriculture land are low lying areas where the rain water gets stagnated during the rainy season and that the Government or any other Department have no right over said patta land. It is submitted that the said land will be used for cultivation after the water gets drained and there is no record of Nallacheruvu tank even in the Revenue records.

PMD,J W.?.No. 3312o of2022

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),2. The learned counsel also contended that Irrigation

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Department is the necessary party to decide the present writ petition and therefore the present writ petition is liable to be dismissed for non-joinder of the Irrigation Department as a proper and necessary party.

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Having regard to the rival contentions and the material on record, it is seen that the dispute is whether the Nallacheruvu tank situated at Vennavalli Gram Panchayat, Kalluru Mandal, is Government land or patta [and. From the counter filed by the Fisheries Department, it is evident that the tank is being maintained by the Government and the fishing rights are being auctioned from time to time. Though the learned counsel for the respondents No.7 to 10 has submitted that it is the Irrigation Department which alone can certify whether the tank is a Government tank or otherwise, from the evidence filed by the Fisheries Department that the expenditure for maintenance of the tanks is being met by the Government, assumes importance.

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Admittcdly the Nallacheruvu, Komatikunta Cheruvu and Ooracheruvu of Vennavalli Village are all being maintained by 1\7

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PMD,J W.P.No. 33120 of 2022

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the Government and the fishing rights are being auctioned by the Fisheries Department from time to time. In such circumstances, it is only the registered Fishermen Co-operative Society which has the right to exploit the frshery wealth after payment of lease rentals fixed by the District Collector. The respondents No.7 to 10, therefore cannot claim to have any hshing rights over the land in Survey Nos.82 & 83 except for cultivation of the same when the land is drained of water.

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This Court in the case of Pattedars Vs. Fisherman

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Cooperative Society Lachagudem (cited supra) has held that it is only thc Fishermen Co-operative Society which has got right to carry out fishing operations when the lands are sub-merged and when such water is receded, the pattedars shall alone havc the right to carry on lhe agriculture and the Fishermen Cooperative Society shall not interfere with the same.

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Learned counsel lor the respondent has not been able to rebut the contentions of the Fisheries Department that the tank is being maintained by the Government with the Government funds. The objection raised by the respondents No.7 to 1O that the lrrigation Department has not been madc party and

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PMD,J 19.P.No. 33120 ol2022

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therefore the writ petition is not maintainable has no legs to stand. The issue beforc this Court is with regard to the fishing rights of the Nallacheruvu of Vennavalli Village and since it has been proved that the said tank is being maintained by the Government with the Government funds, it becomes a tank in which only the Pishermen Co-operative Society has rights of fishing.

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